State ex rel. River Grove Park, Inc. v. City of Kettering

• Decision Date: 02 April 1962
• Citation: 118 Ohio App. 143,193 N.E.2d 547
• Parties: , 25 O.O.2d 7 The STATE ex rel. RIVER GROVE PARK, INC., v. CITY OF KETTERING et al.
• Court: Ohio Court of Appeals

Page 143

118 Ohio App. 143

193 N.E.2d 547, 25 O.O.2d 7

The STATE ex rel. RIVER GROVE PARK, INC., v. CITY OF KETTERING et al.

Court of Appeals of Ohio, Second District, Montgomery County.

April 2, 1962.

Young, Pryor, Strickland & Falke, Dayton, for relator.

Landis, Ferguson, Bieser & Greer, Dayton, for respondents.

KERNS, Judge.

This is an action filed originally in this court wherein the relator seeks a writ of mandamus ordering the respondents to issue a building permit for the construction of commercial buildings in an area now designated as 'Residence 1' by the Kettering zoning ordinances.

In January 1960, the relator entered into a written agreement to purchase approximately sixteen acres which is the subject of the present dispute. The agreement, however, is subject to the condition that the relator may terminate the agreement if it is unable to get the property rezoned from R-1 to B-3 and B-1, as those classifications appear in the Kettering zoning ordinances. This land is part of thirty-seven acres owned by James Pyper and Margaret Routsong located on the west side of Far Hills Avenue in the city of Kettering. The land is now, and since 1946 has been, used for a gravel mining business, which business operation, having been in existence prior to the adoption of a zoning code in 1955, qualifies as a nonconforming use.

The sixteen-acre tract in question has a depth of approximately 565 feet and extends north from the south boundary of Kettering for a distance of 1286 feet. On the south it is bounded by a section of Washington Township which contains a number of single family residences. On the west is the gravel pit, west of which is a comparatively new development of single family residences. To the north is a lane for access to the gravel pit which is south of a row of trees and a stream which runs east and west from Far Hills Avenue. Still further north is a church property which has a frontage of approximately 300 feet. To the east, across the highway (State Route 48) and a two-lane service street is a development of single family residences known as Marinole Park.

Both the relator and respondents have stated the initial issue as follows: 'Is relator the owner in fee simple or does it have an equitable interest therein?' Although this question has been briefed and argued, it is doubtful that a negative answer thereto would be dispositive of this case. Here the action is in mandamus, and the relator, in order to maintain such an action, is not necessarily required to show either a legal or equitable interest in the land involved. It need only show that it has some beneficial interest in the act sought to be compelled. Section 2731.02, Revised Code; State ex rel. Skilton v. Miller, Judge, 164 Ohio St. 163, 128 N.E.2d 47. What constitutes a 'beneficial interest,' however, has been the subject of considerable litigation. 18 Ruling Case Law, 303, Mandamus, Section 238. In the case of State ex rel. v. Henderson, 38 Ohio St. 644, 648, it was said:

'* * * As regards the degree of interest on the part of the relator, requisite to make him a proper party on whose information the proceedings may be instituted, a distinction is taken between cases where the extraordinary aid of a mandamus is invoked, merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest, and, while the authorities are somewhat conflicting, yet the decided weight of authority supports the proposition that, where the relief is sought merely for the protection of private rights, the relator must show some personal or special interest in the subject matter, since he is regarded as the real party in interest and his rights must clearly appear. * * *'

In the present case the contract introduced into evidence clearly shows that the relator has a 'beneficial interest' which is independent of that which it holds in common with the public at large, and that interest is, in our opinion, sufficient to maintain the present action.

The second preliminary question raised is whether the relator applied for a building permit before bringing the mandamus action. The record fails to disclose a formal application for a permit, and the parties are apparently in substantial agreement that no formal application for a permit was ever made. The evidence discloses, however, that certain officers of the relator corporation made informal requests for a building permit and were advised by the Building and Zoning Inspecter that it would be useless to make a formal application. Specifically, the zoning inspector testified that he said: 'I wouldn't issue a building permit anyway.'

The cumulative effect of the testimony upon this issue leaves no doubt that a formal application for a building permit would have been a vain act. In fact, the respondents protest too much now to even argue reasonably that a formal application would have been availing then. It is also persuasive, though not controlling, that a dismissal of the action upon the suggested ground would accomplish nothing at this juncture except further delay and expense. Accordingly, it is our opinion that the verbal request of the officers of the relator corporation for a building permit was sufficient to serve as a prerequisite to the right to maintain the present action.

In logical sequence, the next question for determination is whether the relator has chosen the proper remedy.

The law is well settled in Ohio that mandamus will not lie where there is an adequate legal or equitable remedy. 35 Ohio Jurisprudence 2d 278, Section 31. Its object is to supply the want of a legal or equitable remedy rather than to supplant or supersede every other form of remedy. Therefore, to authorize the issuance of a writ of mandamus, two things must coexist: (1) the absence of a plain and adequate remedy in the ordinary course of law, and (2) the clear right to have the act performed. 35 Ohio Jurisprudence 2d 272, Section 26. There is considerable confusion, however, in applying these basic principles of the law of mandamus to zoning cases because of the apparent conflict in reported decisions. More often than not in this field of law, it appears that courts have been prone to examine the merits of the particular case without regard for the chosen remedy rather than send a litigant on a circuitous route that would eventually lead to the same goal. For this reason, precedent is not completely persuasive. Each case is dependent upon its own merits.

In the instant case, the relator admits that it does not seek to have the Kettering zoning ordinance enforced, but prays rather that the ordinance be declared void; and the respondents have suggested a number of remedies, other than mandamus, to accomplish the desired result. These include (1) an action for declaratory judgment to obtain a determination of the validity of the zoning ordinance; (2) injunction to prevent the enforcement of the zoning ordinance; (3) an administrative appeal under Chapter 2506, Revised Code; and (4) an appeal to the Board of Zoning Appeals under Section 929 of the Kettering zoning ordinances. And the mere fact that zoning regulations have been attacked at various times by the means suggested lends support to the respondents' contention that the relator cannot initially resort to mandamus here. Curtiss v. City of Cleveland, 166 Ohio St. 509, 144 N.E.2d 177, and 170 Ohio St. 127, 163 N.E.2d 682; State ex rel. Grant, Jr., Exr., v. Kiefaber, 171 Ohio St. 326, 170 N.E.2d 848; Criterion Service, Inc., v. City of East Cleveland, Ohio App., 88 N.E.2d 300; Henle v. City of Euclid, 97 Ohio App. 258, 125 N.E.2d 355; State ex rel. Ricketts v. Balsly, Bldg. Insp., 171 Ohio St. 553, 173 N.E.2d 117; State ex rel. Gund Co., v. Village of Solon, 171 Ohio St. 318, 170 N.E.2d 487; State ex rel. Fredrix, v. Village of Beachwood, 17s Ohio St. 343, 170 N.E.2d 847; State ex rel. Iaus, v. Carlton, 168 Ohio St. 279, 154 N.E.2d 150; Shaker Coventry Corp. v. Shaker Heights Board of Zoning Appeals, 115 Ohio App. 472, 180 N.E.2d 27.

However, in the case of State ex rel. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. 375, 160 N.E.2d 1, the right to a writ of mandamus to compel the issuance of a building permit was upheld. At page 377, of 169 Ohio St., at page 3 of 160 N.E.2d, the court said:

'The right to maintain such an action as the instant one has been...